Ruth Milano v. Rolondo Aguilerra Aka "Jay" Aguilar

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' EX PARTE APPLICATION; (2) PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS; (3) GRANTING DEFENDANTS' MOTION TO ) STRIKE; AND (4) GRANTING LEAVE TO AMEND

Plaintiff, a federal employee, filed this sexual harassment action against her former supervisor and others. The court has subject matter jurisdiction over the action pursuant to 28 U.S.C. Sections 1331 and 1367. Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) and a motion to strike pursuant to Rule 12(f). They also filed an Ex Parte Application for Order Dismissing Individual State Law Claims Against Rolando Aguilera Because of Substitution of the United States ("Ex Parte Application"). Plaintiff partly opposed Defendants' motions and the Ex Parte Application. For the reasons which follow, the Ex Parte Application is GRANTED IN PART AND DENIED IN PART, the motion to dismiss is GRANTED IN PART AND DENIED IN PART, and the motion to strike

GRANTED. Plaintiff is GRANTED LEAVE TO AMEND as provided below.

According to the allegations in the complaint, Plaintiff was employed as a produce clerk and cashier by the United States Department of Defense, Defense Commissary Agency. Defendant Rolondo Aguilerra was Plaintiff's supervisor. When Plaintiff was four months pregnant, Mr. Aguilerra sexually harassed and assaulted her. Plaintiff reported the incident to the commissary store director, William Vick, who told her she should report the incident to the military police. Plaintiff reported the incident to the military police and the Department of Defense Commissary Agency Equal Employment Opportunity office. She also reported it to the Assistant Store Director Ruben Barcelona and supervisor Nora Mina.

Immediately thereafter, Plaintiff was transferred from the produce department to the cashier position, which was under Ms. Mina's supervision. The cashier position required Plaintiff to stand for extended periods of time. When she requested a seat due to her pregnancy, the request was denied unless Plaintiff could provide a note from her doctor. When Plaintiff provided a doctor's note, she was given an unstable stool. Her request for a stable seat was refused. Plaintiff claims she experienced these difficulties in retaliation for reporting Mr. Aguilerra's misconduct. In addition, Plaintiff was retaliated against by being singled out for adverse treatment, discipline and scrutiny.

Plaintiff further alleges that Defendants knew that Mr. Aguilerra had sexually harassed other female employees before the incident involving Plaintiff; however, Defendants did not take any disciplinary or corrective steps. In the same vein, Defendants did not take any disciplinary or corrective steps after Plaintiff reported Mr. Aguilerra. Instead, they facilitated his transfer to another commissary store. Plaintiff also alleges that Defendants destroyed evidence relevant to the proof of her claims.

Plaintiff filed a complaint in this court against Mr. Aguilerra, United States Department of Defense and Robert M. Gates, Secretary of Defense. She asserts five causes of action:

(1) sexual harassment - hostile work environment;

(2) sexual assault;

(3) retaliation/reprisal;

(4) spoliation of evidence; and

(5) negligent hiring, training, retention and supervision. Defendants filed the Ex Parte Application seeking to dismiss the state law claims for sexual assault and spoliation of evidence against Mr. Aguilerra because of substitution of the United States. Although Plaintiff does not oppose the substitution, she opposes an automatic dismissal of claims based on the substitution.

The Federal Tort Claims Act ("FTCA") provides in pertinent part:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

28 U.S.C. 2679(d)(2); see also U.S. v. Smith, 499 U.S. 160, 164 n.5 (1991). A scope of employment certification was filed in this case, stating that Mr. Aguilerra "was acting within the scope of his employment as an employee of the United States Department of Defense, Defense Commissary Agency, with regard to the events described in Plaintiff's Complaint." (Certification of Scope of Employment of Individual Def., Rolando Aguilera, filed Apr. 22, 2010.) Plaintiff does not dispute that Mr. Aguilerra acted in the scope of his employment*fn1 and does not oppose the substitution. (Pl.'s Resp. to Ex Parte Application at 1-2; Pl.'s Mem. of P.&A. in Opp'n to Mot. to Dismiss at 4-5.) Accordingly, to the extent Defendants' Ex Parte ...

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